Thakkar (Migration)

[2019] AATA 988

Thakkar (Migration) [2019] AATA 988 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhavalkumar Arvindbhai Thakkar

CASE NUMBER:  1621555

HOME AFFAIRS REFERENCE(S):           BCC2016/277390

MEMBER:Bridget Cullen

DATE:23 January 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 23 January 2019 at 5:34pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Retail Manager –no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, rr 1.13, Schedule 2, cls 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 January 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO 142111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application for the appointment lodged by Jai Sri Krishna Pty Ltd ATF Sanchi Family Trust was refused by the Department.

6. The applicant appeared before the Tribunal on 15 October 2018 to give evidence and present arguments. The hearing was conducted jointly with the related review of Jai Sri Krishna Pty Ltd ATF Sanchi Family Trust’s nomination refusal. The Tribunal also received oral evidence from Mr Manish Patel, the Director of the Jai Sri Krishna Pty Ltd ATF Sanchi Family Trust.

7. The applicant was represented in relation to the review by his registered migration agent. The registered migration agent did not attend the hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been approved and has not been withdrawn and whether the position is still available to him.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. Following the hearing, on 8 January 2019, the Tribunal invited the applicant to comment on or respond to information. The Tribunal’s letter to the applicant set out the following:

    On 4 January 2019, the Tribunal affirmed the decision to refuse the nomination made by Jai Sri Krishna Pty Ltd ATF Sanchi Family Trust.

    This information is relevant to the review as Subclause 187.233(3), in Schedule 2 of the Migration Regulations 1994 requires that the nomination be approved. As the Tribunal has affirmed the decision, it follows that you do not meet Subclause 187.233(3).

    If we rely on this information in making our decision, the Tribunal will have no choice but to affirm the decision to refuse the grant of a Regional Employer Nomination (Permanent) visa. Clause 187.233 is attached at the bottom of this letter.

13. The letter required that any comments of response be received by 22 January 2019.  The applicant has not responded, nor has he requested an extension of time within which to respond.

14. On the information before it, the Tribunal is not satisfied that the position is still available to the applicant or that the nomination has not been withdrawn. As a result, it finds the applicant does not meet cl.187.233 of Schedule 2 of the Regulations.

15. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Bridget Cullen
    Member

    
    

    ATTACHMENT A

    187.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.